PAJA IS NOT APPLICABLE TO ORGANS OF STATE

Before SITA judgment, it was accepted as legally correct for organs of the state to rely on the provisions of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000) (PAJA) to ask courts to review and set aside their own decisions which they believed are unlawful. This was because the Supreme Court of Appeal on numerous judgements had ruled that the provisions of PAJA were available to organs of state to use. Recently, the Constitutional Court delivered a judgement which brings about changes in our administrative law, particularly in respect of how and when the organ of the state should apply to court to review and set aside its invalid administrative actions in the context of section 33 of the Constitution and PAJA.

This development occurred when the court was dealing with the matter between State Information Technology Agency SOC Limited v Gijima Holdings (Pty) Limited [2017] ZACC 40. The facts of the case were briefly as follows: - In September 2006 SITA entered into agreement with Gijima in terms of which Gijima was required to provide IT services to the South African Police Service on behalf of SITA. Gijima performed as per agreement and the contract was extended several times. In January 2012, SITA terminated the contract. Gijima was aggrieved by this decision and approached the court for an urgent interdict. The parties settled the matter and the matter was removed from court roll. A lot of dispute arose between the parties from the settlement agreement and arbitration. SITA then approached to court to have its own decision declared invalid and set aside. Gijima opposed the application on the basis that SITA was out of time to institute the judicial review proceedings as required by section 7 of PAJA. Section 7 provides that proceedings must be instituted without unreasonable delay and not later than 180 days of the decision. SITA was 22 months late. Both the High Court and Supreme Court of Appeal agreed with Gijima in that SITA was way out of time and had failed to convince the court to exercise its discretion in terms section 9 of PAJA (i.e. condone their lateness). SITA had been arguing all the way that PAJA is not applicable to organs of state and therefore they did not have to comply with the 180-day period. The matter came before the Constitutional Court and the crisp issue before court was whether PAJA is applicable organs of state or not.

The court clearly explained the relationship between section 33 and PAJA. Put differently, the court had to investigate the reason for fair administrative action and who it sought to protect. In doing so it had to look at various sources including but not limited to the preamble of the Interim Constitution as basis for human rights. This is the context which it established before it deals with issues in the matter. The court thereafter applied this context in its reasoning.

The unanimous judgement authored by Madlanga J and Pretorius AJ found that PAJA was not enacted for the benefit of the state and therefore the provisions of PAJA are not applicable to the state. The court looked back at the history of the Bill of Rights (chapter 2 of the Constitution - of which section 33 is part of) and concluded that it is unthinkable that the drafters of the Constitution incorporated chapter 2 in the constitution to protect even the state. It held that Chapter 2 is there in the Constitution for the benefits of persons (natural and juristic) and to protect them against the state which has the power. The court further held that PAJA is a legislation envisaged by section 33(3) of the Constitution and that the sole purpose of enacting this legislation was to give effect to the protection and enforcement of rights conferred to persons by sections 33(1) and 33(2) of the constitution, not the state. It therefore concluded that PAJA is not applicable to organs of state. But how can organs of state review their own decisions?

The implications of the SITA Judgment

The organs of the state cannot review their administrative decisions based on PAJA, but may review such decisions under principle of legality. Notwithstanding the aforementioned, the organs of the state are not absolved from time limit as it has been shown that time of great important in avoiding prejudice to be suffered by the aggrieved persons. It is important for any organ of the state to seek proper legal advice on how best to move forward on issues involving administrative and constitutional law.

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